The new edition of this definitive text provides a detailed narrative account of the procedure for referring preliminary references to the European Court for preliminary rulings, under Article 234 of the European Community Treaty and other treaties.It has been thoroughly updated to include new case law, including a number of high profile cases, the new EC Treaty article numbering introduced by the Treaty of Amsterdam in 1999, and other treaty and rule developments.* Provides expanded information on the practice of the other 14 EU member states besides the UK* Provides a useful reference tool for EU member state litigators who are not European law specialists* Includes practical tips, checklists and useful appendices, which include the full text of relevant legislation, treaties and rules

CONTENTS

Chapter 1The Preliminary Reference

INTRODUCTIONEVOLUTION OF THE PRELIMINARY REFERENCECommunity law in the national courtsAn appellate system?Precursors in the Member StatesArticle 41 ECSCArticle 234 ECArticle 68 ECArticle 35 TEUBrussels ConventionLugano ConventionCommunity Patent ConventionRome ConventionOther ConventionsEuropean Economic Area AgreementReferences to the EFTA CourtReferences to the European CommissionThe Treaty of Nice reformsPRELIMINARY REFERENCES AND DIRECT ACTIONSSIGNIFICANCE OF THE PRELIMINARY REFERENCEPopularity of the procedureImportance of preliminary rulingsNATIONAL VARIATIONS IN THE USE OF THE REFERENCEFrequency of referencesCourts most likely to referPost-accession behaviourForum-shopping

Chapter 2Courts and Tribunals Entitled to Refer

INTRODUCTIONWHETHER A "COURT OR TRIBUNAL"The CriteriaCriticism of the criteriaApplication of the criteriaLOCATION OF COURT OR TRIBUNALThe Member StatesFrench overseas departmentsOverseas countries and territoriesOther European territoriesIsle of Man and Channel IslandsInternational courtsCourts of non-Member StatesCOURTS AND TRIBUNALS WITH NO JURISDICTIONImproperly constituted court or tribunalCourt or tribunal with limited jurisdictionNON-ARTICLE 234 REFERENCESArticle 35 TEUECSC and Euratom TreatiesBrussels ConventionCommunity Patent ConventionRome Convention

Chapter 3Jurisdiction to Refer

INTRODUCTIONPROVISIONS OF COMMUNITY LAWThe TreatiesConventions between the Member StatesActs of the institutions of the CommunityActs of the European Central BankStatutes of bodies established by an act of the CouncilInternational agreements of the CommunityAgreements to which the Community is not a partyGeneral principles of lawProvisions of domestic lawRelevance of direct effectINTERPRETATION AND VALIDITYInterpretation and effectChallenges to validityFactual determinationsRAISING THE QUESTIONDECISION NECESSARY FOR JUDGMENT"Decision""Necessary""To enable it to give judgment"NON-ARTICLE 234 REFERENCESECSC and Euratom TreatiesArticle 35 TEUBrussels ConventionCommunity Patent ConventionRome Convention

Chapter 4Impermissible References

RESTRICTING ACCESS TO THE EUROPEAN COURTPOSSIBLE GROUNDS FOR DECLINING JURISDICTIONReferring body lacks power to referEx parte referencesQuestions do not concern Community lawIrrelevant questionsFailure to consider relevance of questionsSettlement of main proceedingsNo real dispute / hypothetical issueReferring court determining validity of foreign lawQuestion relating to conduct of non-partyInadequate statement of facts or national lawPolitical questionConflict with Article 226 proceedingsConflict with Article 230 EC

Chapter 5The Exercise of Discretion

WHETHER TO REFER: GENERAL APPROACHGuidance of the European CourtGuidance of the United Kingdom courtsWHETHER TO REFER: SPECIFIC FACTORSDifficulty of the pointThe court best fitted to decideImportance of the pointDelayOverloading the European CourtCost of obtaining a rulingQuestion already pending before the European CourtWishes of the partiesUlterior purposeWHETHER TO REFER: QUESTIONS OF INVALIDITYPower reserved to the European CourtExtent of the duty to referQuestions of invalidity: United Kingdom case lawWHETHER TO REFER: QUESTIONS OF DIRECT EFFECTWHEN TO REFER: FIRST INSTANCE OR APPEAL?Guidance of the European CourtGuidance of the United Kingdom courtsWHEN TO REFER: THE IMPORTANCE OF FINDING THE FACTSGuidance of the European CourtGuidance of the United Kingdom courts

Chapter 6Courts of Last Instance

INTRODUCTIONCOURTS FALLING WITHIN ARTICLE 234(3)Guidance of the European CourtUnited Kingdom case lawNon-appealable interim judgmentsEXCEPTIONS TO THE DUTY TO REFERActe ÚclairÚActe clairThe future of the CILFIT guidelinesNON-ARTICLE 234 REFERENCESTitle IV of the EC TreatyArticle 35 of the TEUEuratom TreatyBrussels ConventionCommunity Patent ConventionRome ConventionOther ConventionsCONSEQUENCES OF FAILURE TO REFER

Chapter 7Making a Reference

INTRODUCTIONMANNER OF APPLICATION FOR REFERENCEHigh Court and Court of Civil AppealCounty CourtCrown Court and Court of Criminal AppealMagistrates' Courts and tribunalsScottish CourtsNorthern Ireland CourtsHouse of LordsTHE ORDER FOR REFERENCECONTENT AND STRUCTURE OF THE REFERENCEPurposeFormDrafting styleTHE QUESTIONSNumber and scope of questionsFactual backgroundClarity and precisionDivision of jurisdictionOTHER DOCUMENTSCOSTSPUBLIC FUNDINGINTERIM RELIEFGuidance of the European CourtNational measure allegedly in breach of Community lawCommunity measure allegedly invalidPractice of the United Kingdom courtsNational law or Community law test?APPEALSAppeals as a matter of Community lawAppeals under United Kingdom lawTRANSMISSION TO LUXEMBOURG

Chapter 8The European Court

INTRODUCTIONStatute and Rules of ProcedureORGANISATION OF THE EUROPEAN COURTLocation of the CourtCourt sessionsCourt staffCourt facilitiesCOMPOSITION OF THE COURTThe judgesThe advocates generalFull court and chambers

Chapter 9Participants in the Reference

INTRODUCTIONPARTIES TO THE MAIN ACTIONEligibility to participateRole of the partiesINTERVENERSRole of intervenersThe Commission as intervenerThe Council as intervenerEuropean Parliament and ECB as intervenersMember States as intervenersOther intervenersREPRESENTATIONRights of audienceImmunities and privilegesLegal professional privilegeDuties of lawyers to the CourtLEGAL AIDTHE LANGUAGE OF THE PROCEEDINGS

Chapter 10The Written Procedure

INTRODUCTIONREGISTRATION OF THE REFERENCENOTIFICATION OF THE REFERENCEWRITTEN OBSERVATIONSPurpose of written observationsTime limitsLodging observationsAnnexesLanguageFormalitiesWritten observations: practical hintsCIRCULATION OF WRITTEN OBSERVATIONSPRELIMINARY REPORTWRITTEN QUESTIONS

Chapter 11The Oral Procedure

SETTING THE CASE DOWNTHE ORAL HEARINGThe decision to have an oral hearingWhether to attend an oral hearingThe purpose of the oral hearingNotification of the oral hearingReport for the hearingOrganisation of the hearingOral submissionsInterpretationDocuments in aid of submissionsQuestions from the CourtRepliesTranscript of hearingADVOCATE GENERAL'S OPINIONFURTHER PROCEDURAL STEPS

Chapter 12Miscellaneous Procedures

JOINDER OF CASES AND JOINT HEARINGSPower of joinderEffects of joinderConditions for joinderJoinder with direct actionsArguments against joinderSeparation of joined casesPARALLEL PROCEEDINGS IN THE COURT OF FIRST INSTANCESEEKING CLARIFICATION FROM THE REFERRING COURTINTERLOCUTORY APPLICATIONSDISMISSAL OF REFERENCES BY ORDERRefusal of jurisdictionSimplified procedureINTERIM RELIEFEXPEDITIONAccelerated procedureGrant of priorityDEF